Escobedo v. Hussain et al

Filing 16

ORDER CONSTRUING Defendants' Filings as an Answer to the Complaint (re 8 & 11 ), signed by Magistrate Judge Barbara A. McAuliffe on 5/22/15. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSE ESCOBEDO,

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Plaintiff,

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v.
SAFWAN HUSSAIN, dba Primo Mini
Mart; KENNETH A. BOCCHINI, Trustee
of the Kenneth A. and Susan L. Bocchini
Family Trust; and Susan L. BOCCHINI,
Trustee of the Kenneth A. and Susan L.
Bocchini Family Trust,

Case No. 1:15-cv-434 --- BAM
ORDER CONSTRUING DEFENDANTS’
FILINGS AS AN ANSWER TO THE
COMPLAINT
(Docs. 8, 11)

Defendants.

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On March 19, 2015, Plaintiff filed a complaint seeking relief pursuant to the Americans

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with Disabilities Act (“ADA”), et al., against Defendants Kenneth Bocchini and Susan Bocchini

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(“Bocchini Defendants”) as the operators of a business located in Fresno, California (“the

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Property”).1 (Doc. 1). On March 31, 2015, Plaintiff filed a return of service, titled Summons

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Returned Executed, documenting that the Bocchini Defendants were properly served with the

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Summons and Complaint. (Docs. 4, 5). Pursuant to Federal Rule of Civil Procedure 12(a), the

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Bocchini Defendants were required to file a responsive pleading on or before April 20, 2015.

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Plaintiff also names Safwan Hussain as a defendant. Mr. Hussain has not made an appearance and on May
22, 2015, the Clerk entered default as to Safwan Hussain.

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Shortly after Defendants were served, Defendants, appearing pro se, filed an application

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for a stay with an attached letter to the Court responding to the allegations in Plaintiff’s

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Complaint. (Doc. 8).

In that letter, Defendants explained that they have made several

modifications to the property and that the changes render the property ADA compliant.2

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Defendants also stated that they “are looking forward to seeing Jose Escobedo in Court.” (Doc. 8

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at 3). In a second letter filed with the Court on May 15, 2015, Defendants explain that additional

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ADA modifications have been made at the Property in response to Plaintiff’s Complaint. (Doc.

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11). The Bocchini Defendants again expressed that they “are looking forward to meeting with

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Mr. Escobar [sic] to discuss a resolution.” (Doc. 11).

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By filing several letters with the Court responding to the allegations in Plaintiff’s

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complaint, the Court finds that Defendants have sufficiently indicated their intent to defend
against this action. Defendants are without counsel and the Court recognizes that it must be

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“sensitive to the challenges faced by pro se litigants unfamiliar with the judicial process.” See

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Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988), overruled in part on other

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grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Accordingly, in the interest of

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justice, the Court construes Defendants’ letters filed on April 28, 2015 and May 20, 2015 as an

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answer or otherwise responsive pleading to Plaintiff’s Complaint. See Eitel v. McCool, 782 F.2d

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1470, 1471-72 (9th Cir.1986) (“Cases should be decided upon their merits whenever reasonably
possible.”).3

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Based on the foregoing, IT IS HEREBY ORDERED that

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1.

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Kenneth and Susan Bocchini’s documents filed on April 28, 2015 and May 18,

2015 are construed as an ANSWER to the Complaint. (Docs. 8, 11).

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On May 7, 2015, the Court denied Defendants’ Application to Stay. (Doc. 9).
Although Defendants initial responsive pleading was filed after the answer deadline, an eight-day delay in
filing an answer does not merit entry of default.
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The Clerk of the Court is directed to serve this order on Defendants via United

States mail at the following address:

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Kenneth and Susan Bocchini
2208 Mesa Verde Drive
Milpitas, California

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IT IS SO ORDERED.

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Dated:

/s/ Barbara

May 22, 2015

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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